LAM SIN-YI SINDY v. LEUNG KING-WAI WILLIAM t/a WILLIAM K W LEUNG & CO

CAMP 184/2020

[2021] HKCA 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2020

(ON AN INTENDED APPEAL FROM HCME NO 4 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 18 May 2021, the Court of Appeal dismissed the defendant’s application for leave to appeal against the judgment of Mimmie Chan J dated 29 September 2020[1]. The defendant filed a Notice of Motion on 15 June 2021 for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal.

2.  Pursuant to section 14AB of the High Court Ordinance, Cap 4 (“the HCO”), the decision of the Court of Appeal on leave to appeal is final.  On 16 June 2021, the Registrar of Civil Appeals directed the solicitors for the defendant to address the Court by way of letter as to why the Notice of Motion should not be dismissed with costs. 

3.  The solicitors for the defendant made their written submissions by letter dated 25 June 2021.  The solicitors for the claimant made their reply submissions by their letter dated 5 July 2021. 

4.  Pursuant to section 33(4) of the Minor Employment Claims Adjudication Board Ordinance, Cap. 453, a refusal by the Court of Appeal to grant leave to appeal shall be final.  Section 14AB of the HCO also provides that no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.

5.  The solicitors for the defendant submitted that a “final” judgment of the Court of Appeal can be appealed as section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 states that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory.  This contention is wholly misconceived.

6.  As correctly pointed out by the solicitors for the claimant, it has long been recognized in the case-law that a refusal of leave to appeal is generally to be regarded as final and incapable of itself being made the subject of an appeal, see HLF v MTC (2004) 7 HKCFAR 167at §23: “Where the Court of Appeal refuses leave to appeal, it declines to hear the appeal at all and no judgment of that court, whether final or interlocutory, comes into being.  Therefore, no appeal lies under s.22 to the Court of Final Appeal …”.

7.  It is clear from the aforesaid provisions and authority that the refusal of leave to appeal by the Court of Appeal is not susceptible to appeal.

8.  The Notice of Motion is incompetent and constitutes an abuse of process. We therefore dismiss the Notice of Motion.

9.  The claimant makes no claim for costs as her legal team is acting on a pro bono basis.  We make no order as to costs of this application.